A former bookkeeper from Coral Springs was sentenced last week to 51 months in federal prison for embezzling $94,500 from her former employer, a trucking maintenance company based in Fort Lauderdale. She executed the theft through a fraud scheme that involved created fictitious vendor accounts, using the fake vendors to charge the company's credit cards, and then re-routing the stolen money from the fake vendors into her own bank account. She pled guilty to two counts of wire fraud and one count of aggravated identity theft in December.

Under federal law (18 U.S.C. § 1028A(a)(1)), aggravated identity theft that makes it a crime to use another person's “means of identification” during and in relation to certain other crimes, including wire fraud.  A charge of aggravated identity theft carries a two-year mandatory minimum sentence that must be imposed consecutively to the sentence for the underlying crime.  In the bookkeeper's case, for example, her sentence for the two wire fraud counts, without the aggravated identity theft, would have been 27 months.

Not surprisingly, the government will often charge aggravated identity theft in a fraud case to drive up the potential sentence as a leveraging tool to induce a plea bargain. According to the U.S. Sentencing Commission, in fiscal year 2021 the top district in the country for section 1028A offenders was the Southern District of Florida, with the Middle District of Florida coming in third.

A case is currently being considered in the U.S. Supreme Court, Dubin v. United States, that may change the government's liberal application of the aggravated identity theft charge to fraud cases.  Dubin poses the basic question to the Supreme Court: Does a defendant have to steal one's identity to commit the crime of identity theft?

Dubin arises from a conviction for health care fraud.  The defendant was a psychologist and his conviction stemmed from a Medicaid claim he submitted in relation to the treatment of a patient. The patient was in fact treated by his practice, but the claim was falsified in a way that qualified it for payment. The false claim included the patient's name and Medicaid ID number on it.  The government added the aggravated identity theft because the bill included the patient's name and Medicaid ID number, which are “means of identification” of the patient.

The government's argument is that aggravated identity theft is an appropriate charge because the defendant “used” the patient's name, “in relation to” health care fraud, and he “plainly” acted “without lawful authority” when he committed the fraud.

The defendant argues that the patient isn't a victim and the fact that the patient's name and ID number was used is incidental to the fraud scheme.  The patient provided his Medicaid information to the practice to use for billing.  The defendant fraudulently used the patient's information, but that action is encompassed by the fraud charge.  The aggravated identity theft statute “requires a meaningful nexus between the employment of another's name and the predicate offense” and a narrower application of the statute should apply.

How is Federal Aggravated Identity Theft Defined by the Statute?

In order to convict an individual of federal aggravated identity theft under 18 U.S.C. Section 1028A(a), the government must prove the following elements:

1. Knowing transfer, possession or use,
2. Without lawful authority,
3. A means of identification,
4. In relation to any felony enumerated in subsection (c) of 18 U.S.C. 1028(a).

The U.S. Supreme Court held that the defendant's knowledge that a means of identification belonged to another individual must be proven by federal prosecutors. Flores-Figueroa v. United States, 556 U.S. 646 (2009).

Under the statute, “means of identification” is defined as “any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual.” Means of identification examples are:

• Name
• Social security number
• Date of birth
• Official state or government issued driver's license or identification number
• Alien registration number
• Government passport number
• Employer or taxpayer identification number
• Unique biometric data, such as fingerprint, voice print, retina, or it is image, or other unique physical representation
• Unique electronic identification number, address, or routing code
• Telecommunication identifying information or access device.

Federal aggravated identity theft requires the commission of a felony listed in the statute, including:

1. Theft of public money, property or rewards (18 U.S.C. Section 641);
2. Theft, embezzlement, or misapplication by bank officer (18 U.S.C. 656);
3. Theft from employee benefit plans (18 U.S.C. 664);
4. False personation of citizenship (18 U.S.C. 911);
5. False statements in connection with the acquisition of a firearm (18 U.S.C. 922(a)(6));
6. Fraud and false statements (18 U.S.C. Section 1028(a) other than Section 1028(a)(7));
7. Mail fraud, bank fraud, wire fraud (18 U.S.C. Chapter 63)
8. Nationality and Citizenship (18 U.S.C. Chapter 69);
9. Passports and Visas (18 U.S.C. Chapter 75);
10. Obtaining customer information by false pretenses (15 U.S.C. 6823);
11. Willfully failing to leave the United States after deportation and creating a counterfeit alien registration card (8 U.S.C. 1253 and 1306);
12. Any provision contained in Chapter 8 of Title II of Immigration and Nationality Act (8 U.S.C. 1321);
13. False statements relating to programs under the Social Security Act.